How to Be a Great Mediator
“A diplomat… is a person who can tell you to go to hell in such a way that you actually look forward to the trip.” –Caskie Stinnett
What does it take to be a great mediator? Is always being calm and composed enough? Is it being able to see all sides of an argument? It is being able to cut through the lies to find the truth? Or is there some other quality that sets the great mediators apart from the mediocre ones?
Six Qualities of a Great Mediator
1. Ability to Empathize
Being able to walk in another’s shoes (regardless of whether one would buy them) is a priceless trait that engenders trust, builds rapport, fosters consensus, and connects the parties.
A well-known text on alternative dispute resolution stated it succinctly: “It’s not enough to study them like beetles under a microscope; you need to know what it feels like to be a beetle” (Roger Fisher & Ury, 1991). Without empathy, there is no possibility of an honest willingness to understand and, with no understanding, there can be no consensus.
2. Willingness to Understand
A willingness to understand is born out of and demonstrated by listening and asking open-ended questions rather than having the solution. Asking parties who, how, what, why, where, and when and then actively listening to their answers is can shed new light onto the situation at hand.
This concept and these techniques allow for parties’ differences but also puts the focus on their similarities. There must be an honest acknowledgement and appreciation for all involved, an evolution from discussion of the issues to a group vision, and finally the awaited rapprochement. Consider asking the following questions:
- “How did that affect you at the time?”
- “What was that like for you?”
- “What happened next?”
Always remember to ask — don’t tell.
3. Ability to Identify the Source of Conflict
A great mediator who has built sufficient trust and rapport between the parties will frequently remind them that the past is over and the future is now. It has been said that the point of power is the present moment, and this is equally true for the mediation process.
Fundamental to the success of a mediation is the mediator’s prowess in separating the relevant from irrelevant, the meaningful from the unmeaning. Parties tend to weave their way through their individual mental paradigms and tangents. A great mediator will diplomatically but firmly lead them “home” to embrace the core of the conflict.
4. Ability to Inspire Personal Responsibility
Some time ago, I worked under a newly retired marine colonel who had seen a lot of active military combat. (In private I referred to him as “Commando”). I remember asking him about his experiences in combat and the military in general, and I asked him what he thought the most important ingredient was for a person’s success. Commando was emphatic and stated that one’s ability to take personal responsibility for one’s acts is the linchpin for all success.
Look around you… Many people in today’s society seek to avoid personal responsibility. This dynamic often manifests itself by people trying to “lay blame” for misfortune at the feet of everyone and everything else, rather than trying to ascertain what role they played in the conflict.
A great mediator coaxes, prods and cajoles the players as necessary into taking personal responsibility for their respective roles in the conflict. They are also a ready source of acknowledgement and praise for those who engage in this difficult undertaking. No mediation is ever successful and no conflict is ever resolved until the players accept their roles in the underlying disagreement.
5. Ability to Complete Resolution
A great mediator is a “scrapper” who adheres to the premise that an impasse is nothing but an illusion. Rather than viewing the illusion of impasse as a reality, they view it as the watershed that will produce movement from a supposed stalemate to complete resolution — with the assistance of professional techniques.
Attorneys who have appeared before mediators who gave up when there appeared to be a serious obstruction agree that this is a very disappointing experience, not only for the lawyers but also for the parties involved. There is no sense of closure, no feeling of accomplishment. Rather, there is just a sense of loss.
A great mediator pierces the illusion of impasse by reminding themselves that it does not, in fact, exist. They use the techniques they’ve learned to move the parties from the point, expending significant effort on their behalf while reaffirming their roles in and responsibility for the process. A great mediator might say, “I’m feeling a bit frustrated right now. This is your mediation, folks. What do you suggest we do?” And then she keeps silent until someone talks, whether that takes 30 seconds or 5 minutes.
6. Substantive Legal Experience
Although not every great mediator is an attorney, most lawyers I know prefer a mediator who has demonstrated legal experience in areas relevant to the conflict at hand. The first reason for this is the parties’ comfort with and confidence in the mediator. The second reason is the lawyers’ comfort with and confidence in the mediator. The third reason is that a great mediator-lawyer has an excellent grasp of the litigation process, including its deadlines, time constraints, costs of suit, and the ultimate risks associated with a trial or arbitration. The mediator will emphasize these factors when engaging in “reality checks” with the parties and counsel.
How Do I Find a Great Mediator?
If you’re in need of a great mediator, consider asking your friends and colleagues about their experiences with certain mediators. Who did they like most and why? Word of mouth, especially in closely-knit legal communities, is always a competent reference if you trust the source of the information.
Additionally, you can contact people who are under consideration for mediating. Ask for a copy of their resume. Talk with them about about the mediations they have performed — how many, what types of cases, how many years have they been mediating, and if they are members of any panels (like the JAMS national roster of mediators and arbitrators). Ask them for references as to previous mediations. Contact those references and ask about their experience with a particular mediator. Be specific and thorough.
Ultimately, if you want to find a great mediator, you’re going to have to do a lot of the research yourself, especially if you don’t have a trusted reference to point you in the right direction.